The weather is finally changing.  The landscapers are doing a great job and the property looks fantastic.  You are working hard and are on target to have the pool open for Memorial Day.  Life is good!

Then you overhear one of your coworkers talking about a dispute they had at their property last year concerning the pool. You learned that the Board had passed a rule prohibiting children under a certain age from using the pool. Several families within the community with young children said the rule was illegal and discriminated against families with children. The Board countered that the purpose of the rule was for safety reasons and to keep children who are not potty trained out of the pool.

Being proactive, you go and review the policies and rules for all of your communities with pools and learn that many of them have no policy regarding this issue or have similar rules prohibiting children under a certain age. You are concerned that your community may face a similar problem this summer. Now that you think of it, you remember hearing something about a recent law that was passed on another pool related issue. Something about assuring that the pool drains comply with certain safety requirements.

It is amazing how quickly your "to do" list can grow. If one or more of your communities has a swimming pool, we recommend that the Board conduct a careful review of the rules and policies in place pertaining to the use of the pool. Swimming is a wonderful activity, but it is not without risks. We recommend you have your association's legal counsel review its policies and procedures to maximize the use and enjoyment of the pool while minimizing liability exposure to the association.

Should you have any questions regarding your association's policies pertaining to pools or other recreational activities, please do not hesitate to contact us at your convenience.

Swimming pools are certainly popular with property owners in condominium and homeowners' associations - especially those with small children. However, the tragedy of a preventable drowning death and the resulting civil liability for such an event could have a devastating impact on a community.  Condominium and homeowners' association boards should ensure that their pools and spas are safe before allowing the summer fun to start.  This article presents some essential practices that may keep you out of legal trouble.

Condominium and homeowners' associations that have a pool or spa should have a process in place to evaluate whether they are in compliance with recently enacted federal law relating to pools and spas, as well as municipal ordinances and the Association's rules and regulations which may set additional standards.

The Virginia Graeme Baker Pool and Spa Safety Act (the "Act") was enacted by Congress and signed by the President in late 2007.  The goal of this legislation was to improve pool and spa safety by reducing the risk that powerful suction could trap a person underwater.  The Act applies to all "public pools and spas" which term is defined by the Act to include pools and spas that are open exclusively to residents of residential real estate developments or other multi-family residential areas.  Condominium and homeowners' associations are included within this general definition and, therefore, must comply with the Act's provisions.

The Act requires the installation of certain types of anti-entrapment drains and/or devices over pool and spa drains.  The law also requires barriers to protect small children from gaining unsupervised access to a pool or spa.  Seasonal pools and spas that are currently closed must be in compliance with the Act on the day that they reopen in 2009.  Municipalities may also set their own standards, including chemical guidelines, inspections, record keeping, and equipment and fencing requirements.

A thorough inspection of the pool, the surrounding areas and all pool equipment should be done before opening each year and a record should be made and retained of that inspection.  In order to deal with the myriad of legal and regulatory requirements relating to pools and spas, the Association may want to appoint a pool committee to be responsible for reviewing and updating the Association's rules, rule distribution, administering periodic inspections and overseeing the pool contractor.  We recommend having a manual that dictates the responsibilities of the pool committee and/or board member liaison to the pool contractor.  The Association should also consult with legal counsel periodically to ensure that their rules comply with the Fair Housing Act requirements relative to protected classes, such as handicapped persons or familial status.

Following these guidelines will hopefully lead to a safer and fun-filled summer.